Last Updated on: 27th May 2023, 12:18 pm

Before July 24, 2011, when same-sex marriage became legal in New York, same-sex couples were not legally recognized as legitimately married in the eyes of the law. Benefits of marriage such as social security benefits, inheritance benefits, and health insurance benefits were denied them.

Although there have been countless changes that benefit LGBT couples both in law and in the social sphere, the law is still evolving in this area and there are frequent challenges to the laws that exist. There are still obstacles that LGBT couples face and they require the same legal representation as opposite-sex married couples. The issues in marriage and Divorce, Child Custody, and legal agreements fall under the umbrella of Family Law.

From prenuptial agreements to adoption or divorce, an LGBT family law lawyer is knowledgeable in the unique challenges and issues in the LGBT community. It may be hard to keep up with LGBT Rights and the legal challenges to them. Having a lawyer on your side who understands your rights and will fight for them can give you a sense of peace and safety that can often seem elusive.

What Are LGBT Rights?

In the landmark case of Griswold v. Connecticut¹ in 1965, the Supreme Court officially acknowledged that marriage relationships were intimate to the degree of being sacred, and they are a way of life and not social projects. At the time, marriage was defined only as between two partners of opposite sex. Same-sex couples were not recognized to be a part of unions described by the Court as sacred.

In 2017, a Gallup Poll revealed that there were 1.1 million LGBT people married to someone of the same-sex or 547,000 married same-sex couples. 1.2 million LGBT people in the U.S. are in a same-sex relationship but unmarried.

While countries like Nigeria were outlawing same-sex marriage in 2011, the United States was litigating the rights of same-sex persons to legally marry, however, there were still discriminations on the individual as well as state levels.

The U.S. Supreme Court ruled that individual states cannot ban same-sex marriage. They are required to issue marriage licenses to any same-sex couples who apply. The 2015 deciding case of Obergefell v. Hodges², determined that same-sex couples have the fundamental right to marriage per the Due Process Clause and the Equal Protection Clause of the 14th Amendment.

Health providers and insurance companies are no longer able to discriminate by turning someone away for being LGBT or denying anyone coverage for a pre-existing condition. Same-sex domestic partners can also receive long-term care insurance and are eligible for federal benefits under their same-sex federal employee partners.

LGBT couples have rights in the workplace, the healthcare environment, government institutions and they have rights under the law to adopt, enter pre and postnuptial agreements, win custody of children and receive all the same benefits as opposite-sex couples.

What Can An LGBT Family Law Lawyer Do For Me?

LGBT same-sex marriages can come with some specific unique elements, however, as far as the law is concerned they face the same challenges all marriages do and so the issues a lawyer can assist with include:

• Prepare Legal Contracts
• Pre and Postnuptial Agreements
• Divorce
• Adoption
• Estate Planning
• Orders of Protection
• Surrogacy
• Discrimination
• Child Custody
• Inheritance

It is always wise to work with an LGBT family law lawyer who can not only advise you on legal issues that affect the LGBT community, and partnerships in general, but defend your rights if you ever face an injustice that is against the law.

The law has come quite a long way in protecting the rights of all people. There will always be hurdles here and there to overcome whether someone is a member of the LGBT community or not, however, an LGBT family law lawyer understands the unique challenges to the community and is able to ensure that everyone’s rights are respected and upheld.

In the past two decades or so, the United States has seen a massive cultural and legal shift regarding the rights of LGBT community members. New York in particular has evolved regarding gay rights. The most significant difference is the right of LGBT community members to marry their chosen partners in all of the United States.
With these new rights comes the potential for new legal complications. Family law is rapidly developing insights and practices to represent people in same-sex marriages. If you’re seeking a family law attorney to represent you as an LGBT client, you should consider the following factors before making your decision:

Experience With LGBT Clients

It’s not necessary for a lawyer who works with LGBT community members to be a member of the community themselves. However, they should have experience with the representation of LGBT clients. Growing numbers of New York attorneys have negotiated family law and other agreements for their LGBT clients. Because the rights of LGBT people have been so recently granted, and aren’t universally guaranteed, a lawyer who represents LGBT clients must be familiar with discrimination and domestic law issues.

If you’re seeking a family law attorney for your LGBT relationship or child, your first step will be to have a consultation. The attorney will discuss your legal matter or case, the nuances of the law regarding it, and potential approaches going forward. Consultations are the best way for LGBT community members to gauge whether the attorney will be a good fit for their circumstances. A family law lawyer must understand the nuances and complications inherent in domestic law for LGBT people.
Across the state, a growing number of enrichment programs have been designed for attorneys to learn more about how to represent the LGBT community. These programs include information about LGBT rights, marriages, custody agreements, and etiquette. Additionally, certain specialized non-profit organizations will take on attorneys who want to provide their services to LGBT community members.

Divorcing Same-Sex Couples and Child Custody

When child custody is an issue, same-sex divorces use the same standards as opposite-sex divorces. The court will make the custody determination based on the child’s best interests. This determination will define which parties get physical custody, legal custody, and visitation rights.

Theoretically, courts are neutral when approaching a child’s custodial placement with same-sex parents. Instead of applying preconceived notions to the case, the court analyzes a set of domestic factors, and then applies them to the case circumstances.
A court might consider which parent has filled the role of primary caretaker for the involved child. Other potential deciding factors include, but are not limited to: physical health, mental health, and emotional health of all involved parties.

The Potential for Inherent Discrimination

Even though a great deal of progress has been made for LGBT community acceptance, there’s still a possibility of inherent discrimination. Any attorney working with the LGBT community should be aware of the potential for discrimination and hypervigilant in protecting their client against it.

LGBT Marriage

Same-sex marriage was legalized in New York before the 2015 Supreme Court ruling that nationalized it. However, same-sex marriage still receives frequent challenges both in New York and in the rest of the country. These challenges occur on both an individual and systemic basis. For an example of individual discrimination, some same-sex couples have faced the illegal denial of their marriage license by government workers citing “religious reasons.” On a systemic level, many state legislatures have attempted to enact discriminatory legislation in retaliation for the marriage equality decision.

If you’re facing discrimination regarding the officiating or verifying of your marriage, a family law lawyer should be your first resource. Sometimes, the problems don’t stop when the marriage license is issued. Couples still might face illegal discrimination including the refusal of businesses to serve them, the denial of hospital visitation rights, and the denial of the right to make life-saving medical decisions for a person’s spouse.

Even though the law is on the side of LGBT people, facing illegal discrimination is still a frightening and alienating experience. A good family law attorney will not only understand the law, but they’ll be experienced using it to defend their clients against unlawful discrimination.

¹GRISWOLD ET AL. v. CONNECTICUT No. 496 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 , (1965), https://web.stanford.edu/~mrosenfe/Griswold_v_CT_US_1965.pdf (last visited Sep 9, 2017).
²OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14–556. , (2015), https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (last visited Jul 2, 2015).

Before same-sex marriage became legal in New York on July 24, 2011, same-sex couples were not legally recognized as married and were denied benefits such as social security, inheritance, and health insurance. While there have been significant changes benefiting LGBT couples, legal obstacles remain. Hence, LGBT couples require the same legal representation as opposite-sex couples in matters of marriage and divorce, child custody, and legal agreements.

An LGBT family law lawyer can assist with legal contracts, pre-nuptial and post-nuptial agreements, divorce, adoption, estate planning, orders of protection, surrogacy, discrimination, child custody, and inheritance. A lawyer who understands the unique challenges faced by the LGBT community can ensure that everyone’s rights are respected and upheld.